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[2015] ZAGPPHC 604
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Hendricks v Passenger Rail of South Africa (27200/2013) [2015] ZAGPPHC 604 (13 August 2015)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 27200 / 2013
In
the matter between:
HENDRICKS:
CRANE
PLAINTIFF
AND
THE
PASSENGER RAIL OF SOUTH AFRICA
DEFENDANT
JUDGMENT
MAVUNDLA
J;
[1]
The plaintiff instituted a claim against the defendant for damages he
allegedly suffered as a result of personal injuries he
sustained on
the 15 February 2013, when he attempted to board the stationary
train, while the doors were still open, the train
moved off, causing
the plaintiff to lose balance and fall under the train at the
platform.
[2]
At the commencement of the trial, by agreement between the parties,
this Court granted separation of the merits from quantum
in terms of
rule 33(4) and ruled that the issue of quantum be postponed sine die
and the matter proceed only on the merits.
The only issue to be
decided was the question of liability.
[3]
The plaintiff in his pleaded case alleged that the
defendant owed the duty of care to members of the public,
including
the plaintiff, to ensure the safety of the plaintiff and failed
to take adequate steps to avoid the incident in
which the plaintiff
was injured; and allowed, inter alia, the train to be set in motion
without ensuring the doors of the train
and the coach in which the
plaintiff travelled were closed before the train was set in motion;
allowed the train to pull off the
platform while the plaintiff was
still in the process of boarding the rain.
[4]
It is trite that the plaintiff bears the
onus
of proving his
case against the defendant. In this regard it is apposite to cite
from
Macheke and Passenger Rail Agency of South Africa
(2013 /
16571) [2015] ZAGP JHC 22 (9 February 2015) the following:
“
APPLICABLE
LAW
[32]
The case advanced by the plaintiffs is premised on two negligent
omissions, namely, the alleged breach of duty of care 'PRASA'
owes to
the general public and to 'Grant' as a result of an alleged failure
to put reasonable measures to prevent the incident.
[33] The first question for this court
is whether or not the plaintiff has discharged the
onus
of
establishing on the balance of probabilities the breach of this duty.
Related to this question is an aspect of the burden required
to be
discharged by the plaintiff, namely whether, 'but for' the inadequate
measures allegedly employed, the accident would not
have occurred.
[34] It is not disputed that 'PRASA'
provides a rail commuter service in the public interest, and as an
organ of state bears the
obligation to protect the rights to dignity,
life and security of commuters as well as the general public that
utilizes facilities
under its control. This obligation was affirmed
in Rail Commuters Action Group 11 and in considering factors
relevant, the court
held that:
"Factors that would ordinarily be
relevant would include the nature of the duty, the social and
economic context in which it
arises, the range of factors that are
relevant to the performance of the duty, the extent to which the duty
is closely related
to the core activities of the duty-bearer - the
closer they are, the greater the obligation on the duty-bearer, and
the extent
of any threat to fundamental rights should the duty not be
met as well as the intensity of any harm that may result. The more
grave
is the threat to fundamental rights, the greater is the
responsibility on the duty-bearer. Thus, an obligation to take
measures
to discourage pickpocketing may not be as intense as an
obligation to take measures to provide protection against serious
threats
to life and limb. A final consideration will be the relevant
human and financial resource constraints that may hamper the organ
of
State in meeting its obligation.”
Vide
also South African Railway v Almma Philisiwe Thwala
2011
JDR 1242 where it was held that:
“
The
onus
to
prove negligence rests on the plaintiff and it requires more than
merely proving that harm to others was reasonably foreseeable
and
that a reasonable person would probably have taken measures to avert
the risk of such harm. The plaintiff must adduce evidence
as to the
reasonable measures which could have been taken to prevent or
minimise the risk of harm.”
[5]
The defendant in his plea denied the version of the plaintiff and
pleaded that the cause of the incident was the plaintiff,
in
placing himself in the railway lines and by so doing assuming
volenti
non fit injuria.
[6]
The defence of
volenti
non fit injuria
as
pleaded by the defendant is well articulated in the matter of
Santam v Vorster
1973 (4) SA 764
(A) at 764E
as
follows:
“
In an action
for damages for bodily injury caused by negligent driving, in which
the defendant raises
the
defence of
volenti non fit injuria
,
if it be shown that, in addition to knowledge and appreciation of the
danger, the claimant foresaw the risk of injury to himself,
that will
ordinarily suffice to establish the 'consent' required to render him
volens
-
provided always that the particular risk which culminated in his
injuries falls within the ambit of the thus foreseen risk.”
[7]
The evidence of then plaintiff was as follows:
He
is […..] years old and a South African citizen. On the 15
February 2013 he was involved in an incident. He was on his
way from
work to get a train at Sports Park in Centurion on his way home. He
had his monthly train ticket. He works at Centurion.
It was 16h30 to
17h30. It was late in the afternoon and still light outside in
February. The train pulled, stopped
and the doors opened.
Just as he wanted to get in the train it pulled off and he fell.
Normally the train is full and one
must wait for the people to
disembark. Just as he placed his foot on the train the train pulled
off and he fell. He said that it
is everyday busy on the train. Asked
whether there were security guards he said that there was a lot of
movement at that time.
He said that it was busy at that moment. He
said that during that time of the day in the evening as well as in
the morning it is
very busy. It is very busy at that time and it is
difficult to see who is getting in and off the train on the
platform. He
was asked exactly what happened he said that when
he placed his foot on the train, the train pulled off and he fell and
when he
recovered he was underneath the platform but not on the train
rails. When he tried to board, the doors were open and the
train pulled off while the doors were still open.
[8]
Under cross examination the plaintiff said that he fell and when he
opened his eyes he was underneath the platform. He cannot
say he was
unconscious. Asked whether he lost consciousness he said that he does
not know how to answer that. He was referred to
paragraph 7.3 of his
particulars of claim where it was alleged:
“
Loss
of consciousness”
. He
responded that he does not know how to explain this. He does not know
how long he was underneath the platform. He said that
when a person
is injured automatically he does not know how to explain what
happened. He stays at Eersterust and was going home.
He was referred
to paragraph 1 where it is stated that he currently resides at
[.....]. He said that he did not tell this to his
attorneys. He said
that he made a mistake about the time he gave earlier and the correct
time was 16:45. When he started working
at his place of employment,
he always used a train. There is something on which one can
place his foot (foot plate) when
the door opens. It was a busy time
of the day and people were getting off the train while others were
boarding. As he placed his
foot on the foot plane the train pulled
off. There is a pole at the entrance of the door. He did not hold to
the pole as he tried
to get in the train. He cannot dispute that it
would have helped had he held the pole and that could have prevented
his falling
underneath the platform. He cannot say that even if he
had held the pole the accident would not have occurred. He conceded
that
his other foot was on the platform. To the Court’s
question he said that he was on motion with one foot in the train and
the other in the air. He said that he cannot tell whether his body
automatically landed on the platform. When he opened his eyes
he was
underneath the platform, he cannot say whether he automatically
landed on the platform. He does not know how to answer.
To
demonstrate what happened he liftied his arms over his head and moved
backward as if he is falling. He said that he did not
say that the
train came, stopped and pulled off. He said that the train stopped
and waited for the people to board. There were
lots of people. Those
who were on the platform waited for the people to alight. He does not
know exactly where he was, but he was
not in the front of the
boarding people, but could have been in the middle of the people
boarding. He conceded that people were
jostling to get off and in but
he does not know where exactly he was in the jostling people. He said
that when the train pulled
off it did so suddenly and strongly and
that is when he fell. He was in between the railways and the
platform. He cannot
remember whether he noticed the train
wheels. He does not know where precisely the train was when he fell
underneath. Although
not certain it is possible that the train was
still there. He has used the Sports park station before. He conceded
that the platform
is straight. When he entered the platform he
went past the gate manned by security ticket guard. There are 2
or 3 compartments
entries. There is a gate on the right side
and that is the one he used to enter. When one enters the station he
can go to
the right or to the left. He went to the right. He did not
hear the train serene blown when it came in because there was a lot
of movement. As one gets in on the right there are ticket guards. He
was not far from the front end of the train. Asked whether
there was
any one who came to assist him, he said that he was in pain and
thinks there was someone who came to his assistance,
as he was lying
there. He thinks it is a security officer who came to help him. The
security personnel was a man and spoke to help
him No one assisted
him. The person removed his ticket and he did not give anyone his
personal details as he was in pain. He said
that the pain, although
difficult to answer, emanated from the whole body, from the left leg,
head and stomach. At that stage he
did not know whether his leg was
fractured, the left leg it was towards the hip, the left upper leg.
He is not sure whether the
train left. He cannot dispute that the
train left, as would be testified to by the train driver. It was put
to him that just before
the train left the train guard had blown his
whistle. He said that he cannot dispute that. Someone of the
paramedics helped him from the platform where he was lying. He cannot
dispute that the incident
occurred in train number 0653 and that it
was from Johannesburg. He does not have children. He conceded that a
train is dangerous
and to walk in the vicinity of a train track. It
is dangerous to place one or to walk in the vicinity of the train and
it is suicidal
to do so.
[9]
It was pointed out to him that the defendant denies the plaintiff’s
version. It was put to him that the plaintiff
was running next
to the train tracks when the incident occurred. The plaintiff denied
this version and said that he entered the
train precinct saying that
he entered the place at the correct place. He denied that he was
running and that he was doing so in
the company of another person. It
was put to him that the second person vaulted on the platform while
the plaintiff failed to do
so. He said that he cannot dispute this.
It was put to him that the train clipped him as he was trying to
climb on the platform.
His response was that if they say so there is
nothing he can do. He cannot dispute that the train left after
necessary steps were
taken by the guard who blew his whistle.
[10]
Under re-examination the plaintiff was referred to annexure A. He
said that was his monthly ticket. The fracture of the leg
was on the
upper part of his left leg. After the accident there were lots of
lacerations. The lacerations on the head were as the
result of the
injuries on his head. The address in paragraph 1 is not his. 480
Tames Avenue in Eersterust. His foot was on the
foot plate. He said
that he did not chase after the train nor stand in front of the
train. The train stop for not even a minute.
People push one another
in order to get into the train. He was not sure when he train was to
leave. He did not hear the whistle.
When people disembark or get on
the train
it is
chaotic. Asked whether he at any stage, ran next to the train, the
plaintiff said that there are some times when he had to
push in order
to get into the train. He denied that he ran along the railway tracks
with any person on that particular day. The
train stopped at the
platform and it was then he tried to board.
[11]
Under further re-examination he conceded that he is neither a doctor
nor a psychologist. He said that he cannot say whether
his head
injury led to his unconsciousness. The time of a minute for the train
to stop and leave was a general time frame, which
is a normal time.
He conceded that he was the only one injured and that the leaving of
the train was not abnormal.
[12]
The defendant called 3 witnesses, namely Mr Nicholus Mullman, Mr
Jabulani Timothy Mabuza and Ms Mapule Gladys Mekwa
[13]
The defendant’s first witness was Mr Nicholus Mullman who
testified that he is employed by Metro Rail as a train driver
for 27
years. He said that on the 15 February 2013 he was the driver
of train number 0653 between Pretoria and Johannesburg.
His train
started in Johannesburg ravelling to Pretoria. When he was in
Centurion he left from there to Pretoria. As he was
approaching
Sports Park station a person ran from Westerly direction towards the
railway station. The person ran next to the train
in the direction of
the platform. In front of the station there is palisade to stop
people. The only way the person could reach
the platform was to run
along the railway line towards the platform. This person continued
running while he (Mullman) blew his
whistle. The person was busy
trying to climb the platform from where it starts. The train clipped
this person. He was supposed
to stop at the station and he had
already applied his brakes and hit the person. There was no way of
avoiding hitting the person.
After the train stopped Mullman walked
towards the back of the train. The person was lying underneath the
platform but behind the
train. He made certain that the person was
not on the railway tracks. He noticed that the person was in his full
sense. He and
a security guard spoke to this person and they made
sure that that he was free and off the railway lines. There were
other people
around the scene. He spoke to another person who took
over at the scene so that he could proceed further with his duties.
Before
he proceeds, the train conductor would blow a whistle to
inform him he could leave the station.
[14]
Under cross examination he said that when the person was running
towards the westerly direction, he was not on the train lanes.
He was
running and looking at the train. He must have seen him. He conceded
that it was irresponsible of this person to run along
the railway
tracks as he did. There is no other way that this person, from that
direction he was running from, could have reached
the platform
without running along the railway lane. The palisades start about 5
to 10 meters from the beginning of the platform
and run up to the
edge of the platform. He said that he struck the person at 60 kph. He
said that he cannot tell whether the injuries
would have been more
severe than they were at the speed he was travelling. To his
observation it appeared that there was a cut
on the leg of this
person and he was conscious. The person was lying underneath the
platform where it starts, but not on the railway
lanes. He disputed
that the person was on the platform and fell under the platform. He
would not say that there would be nothing
left of the person being
hit by a train travelling at 60 kmh. Plaintiff’s counsel
said that he is not certain whether
the plaintiff is the right
person. He said that the investigating personnel of Metro came to
take a statement and he explained
to them what happened.
On
re-examination Mullman said that his train on that particular day was
not involved in any other incident or similar incident.
[15]
The defence called Mr Jabulani Timothy Mabuza who testified that he
is employed by PRASA as a Metro Train guard since 1996.
His
function as a guard is to open
and
close the train doors at stations and thereafter he would blow his
whistle to signal the train driver to pull off. His duties
as a
guard is, inter alia, to check whether those who want to get off the
train are indeed off and those who want to board
the train have done
so before he blows his whistle for the train driver to leave the
platform. As the guard he stays at the back
of the train. His driver
was Nicho Mullman on that particular day. On this day they moved from
Centurion and the train approached
Sports Park station where it
stopped. He saw the driver coming towards the back of the train. The
driver informed him that there
was a person who was knocked down by
the train as he was trying to jump to the station. They both went to
see underneath the train
and saw a person underneath the platform.
They called for assistance. If the person is not on the railways lane
they would tell
the driver to leave. After noting that there was no
one on the platform and those who wanted to board have done so, he
then blew
the whistle for the driver to leave. He closed the widows
before closing and blowing the whistle. Before closing the doors, he
first blows his whistle and then closes the doors. On that particular
day he did exactly that and the doors were closed when the
train left
from the station. Once satisfied that there were no people wanting to
board the train he then blows the whistle for
the driver to leave.
[16]
According to Mabuza he was not approached by the investigators about
this incident. He does not remember having been approached
to give
his version of what happened. In most of the cases when an
investigation is made he must also be confirmed, which has not
been
done. He saw the person for the last time when he saw him underneath
the platform. The person was more underneath the platform,
facing
towards it. The person was of light in complexion. On his
recollection the person was not lying on but far from the rail.
He said that Mullman may have seen properly how the person was lying.
The person was not lying on the platform but underneath it.
The
person was lying underneath the platform and the person was behind
the train underneath the platform. He did not see the person
being
hit by the train. He does not believe that the person was hit by the
train while on the platform; otherwise he would not
have been where
the platform commences. It was unlikely that the person was on the
platform trying to board because it is impossible
that he could have
landed at the position he was. The person was at the back of the
train and could not have been in the middle
trying to board the
train. On re-examination he said that on that particular day this was
the only incident that occurred with
his train and train driver.
The
train was from the direction of Johannesburg towards Pretoria, South
to North. The person was lying on the southern side. The
person was
lying on the eastern side of the railway line. In this regard he drew
a sketch showing the railway tracks running from
South to North with
the platform on the western side of the railway lanes. The person was
shown lying on the southern westerly
just where the platform starts.
The sketch was marked and accepted as exhibit “A”.
Under
cross examination he said that sketch is correct. The platform is
long and on the western side of the platform there is enough
space.
The train was stopped in the platform and not before the platform.
[17]
The defence called Ms Mapule Gladys Mekwa she works at
the investigation section of the defendant for 10 years.
The
incident happened in February 2003. She was acting as a supervisor,
when she received a call informing her of a person having
been hit by
a train at Sports Park station. The investigator Officer Mphahla was
informed of this call. At the time she was at
Centurion offices. She
and Mphahla went to the Sportpark. They both went to where the
platform starts where a person was lying.
There was an unknown
injured male person lying underneath
the platform. A lady who said that she was the mother of the injured
person gave them his details.
They waited for some few minutes until
an ambulance came and the paramedics attended to the person, where
after they transported
the person to the hospital.
Under
cross examination Ms Mekwa said that the plaintiff was under the
platform. On her arrival there was no train. She knows Sportspark.
There are only two railways. The person was not lying on the tracks
but under the platform. At the station there is no bridge.
It is
common that people would walk over the railway lines. There was
investigation over this matter. She did the investigation.
She did
not witness the incident happening.
[18]
To the Court’s questions she said that the person was found at
the beginning of the platform. The person was found at
the point from
Johannesburg to Pretoria at the begging of the platform. The train
would be in the middle of the platform and the
person was at the back
of the train.
[19]
Under re-examination she said that the bridge she referred to earlier
is the bridge carrying cars. There is a pedestrian bridge
enabling
the passenger to reach the platform. The witness drafted a
sketch which was substantially similar to that drawn
by Mabuza. It
was accepted as exhibit B. The defence closed its case.
[20]
In casu
, there are two mutually destructive versions of the
parties. The Court must apply the principle propounded in
the
Stellenbosch Framers’ Winery Group Ltd and Another v Martell ET
CIE and Others
2003 (1) SA (SCA) 11 at par [5] at H 14I -
15:as follows:
“
The
technique generally employed by courts in resolving factual disputes
where there are two irreconcilable versions before it may
be
summarised as follows. To come to a conclusion on the disputed issues
the court must make findings on (a) the credibility of
the various
factual witnesses, (b) their reliability, and (c) the probabilities.
As to (a), the court's finding on the credibility
of a particular
witness will depend on its impression of the veracity of the witness.
That in turn will depend on E a variety
of subsidiary factors
such as (i) the witness' candour and demeanour in witness-box, (ii)
his bias, latent and blatant, (iii) internal
contradictions in his
evidence, (iv) external contradictions with what was pleaded or put
on his behalf, or with established fact
or with his own extracurial
statements or actions, (v) the probability or improbability of
particular aspects of his version, and
(vi) the calibre and cogency
of his performance compared to that of other witnesses
testifying about same incident or events.
As to (b), a witness'
reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (v), on (i) the opportunities
he had to experience
and observe the event in question and (ii) the quality, integrity and
independence of his recall thereof.
As to (c), this necessitates an
analysis and evaluation of the probability or improbability of each
party's version on each
of the disputed issues. In the light of
its assessment of (a), (b) and (c) the court will then, as a final
step, determine whether
the party burdened with the onus of proof has
succeeded in discharging it. The hard case occurs when a court's
credibility findings
compel it in one direction and its evaluation of
the general probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are
equipoised, probabilities prevail.”
[21]
The plaintiff as a witness was not an impressive. He was not
spontaneous in answering questions. He generalized when
asked simple
questions which required a simple answer. In other instances he
was vague. When asked whether he was unconscious
after falling
underneath the platform, according to his version, he resorted in
saying that he does not know how to answer the
question. He
contradicted his earlier version that he was unconscious. He later
said that he was not unconscious. The cross examination
of the
plaintiff revealed that the plaintiff does not know what happened, if
he does, he was not candid with the Court. He was
unable to deny the
version of the defendant as put to him.
[22]
On the other hand the defendant’s witnesses were impressive,
forthright and spontaneous in their answers. Exhibit A and
exhibit B
which were handed by the defendant’s witness, respectively Mr
Mabuza and Ms Mekwa are schematic drawings of the
platform and the
railway tracks. The train according to both these witnesses would
have been from South to North with the platform
on the western side
of the railway tracks. The injured person was at the beginning of the
platform that is on the western but southern
part of the platform.
This version was corroborated by the train driver who said that after
he had stopped the train he walked
to the far end at the beginning of
the platform where he and Mr Mabuza spoke to the plaintiff as he was
lying underneath the platform.
[23]
The position where the plaintiff was placed by the defendant’s
witness makes the version of the plaintiff that he was
on the
platform when struck by the train improbable. The position where he
was found according to the defendant’s witness
was not
disputed. The version of the defendants’ witness, I find
it to be probable than that of the plaintiff, and
as the result I
accept the defendant’s version and reject that of the
plaintiff.
[24]
In so far as any failure to have avoided the incident happening, on
the accepted version of defendant, there was no evidence
placed
by the plaintiff, calculated to demonstrate that the defendant
ought to have done more or whatever, to prevent
people
accessing the platform from the direction mentioned by Mullman.
[25]
In the result this Court find that the plaintiff failed to acquit the
onus resting on him to prove his case against the defendant
and
consequently the action is dismissed with costs.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE :
11-12 AUGUST 2015
DATE
OF JUDGMENT: 13 AUGUST 2015
PLAINTIFF`S
ATT : RAPAHAEL &
DAVID SMITH INC
PLAINTIFF`S
ADV : ADV D. BISSCHOFF
DEFENDANT`S
ATT : LEDWABA MAZWAI
DEFENDANT`S
ADV : W LUSENGA